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POWERS OF ATTORNEY AMENDMENT BILL 2008

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POWERS OF ATTORNEY AMENDMENT BILL 2008 Powered By Docstoc
					                                      TASMANIA

                                      __________


                POWERS OF ATTORNEY AMENDMENT BILL
                               2008
                                      __________

                                     CONTENTS
          1.      Short title
          2.      Commencement
          3.      Principal Act
          4.      Section 3 amended (Interpretation)
          5.      Section 4 amended (Register of powers of attorney)
          6.      Sections 9 and 10 substituted
                    9.        Formal requirements
                    10.       Requirements for other instruments
          7.      Section 11 amended (Powers of attorney not to be registered
                  except in accordance with this Act)
          8.      Section 12 amended (Lodgment of powers of attorney, &c.)
          9.      Section 18 amended (Form of power of attorney)
          10.     Section 26 amended (Appointment of attorney by class)
          11.     Section 30 amended (Creation and effect of enduring powers of
                  attorney)
          12.     Section 32 amended (Duties of attorney under enduring power of
                  attorney)
          13.     Section 32A inserted
                    32A.     Substitution of The Public Trustee as attorney
          14.     Section 33 amended (Power of Board to make orders in respect
                  of enduring power of attorney)

[Bill 4]-VI
    15.   Section 55A substituted
            55A.     Prescribed fees
    16.   Schedule 1 substituted
            Schedule 1 – Forms




2
                    POWERS OF ATTORNEY AMENDMENT BILL
                                   2008
                 (Brought in by the Minister for Primary Industries and Water,
                          the Honourable David Edward Llewellyn)

                                        A BILL FOR

                An Act to amend the Powers of Attorney Act 2000


                Be it enacted by His Excellency the Governor of Tasmania, by
                and with the advice and consent of the Legislative Council and
                House of Assembly, in Parliament assembled, as follows:



                    1. Short title
                              This Act may be cited as the Powers of Attorney
                              Amendment Act 2008.


                    2. Commencement
                              This Act commences on the day on which this
                              Act receives the Royal Assent.


                    3. Principal Act
                              In this Act, the Powers of Attorney Act 2000* is
                              referred to as the Principal Act.




           *No. 68 of 2000

[Bill 4]                                                                         3
              Powers of Attorney Amendment Act 2008
                            Act No. of
s. 4


       4. Section 3 amended (Interpretation)

                Section 3(1) of the Principal Act is amended as
                follows:

                  (a)   by inserting the following definition after
                        the definition of “enduring power of
                        attorney”:

                          “instrument” includes        registration
                               application;

                  (b)   by omitting the definition of “person
                        acting judicially”;

                  (c)   by inserting the following definition after
                        the definition of “register”:

                          “registration application” means a
                              registration   application  in
                              accordance with form 5;


       5. Section 4 amended (Register of powers of attorney)
                Section 4 of the Principal Act is amended as
                follows:

                  (a)   by inserting in subsection (2) “copies of”
                        after “consists of”;

                  (b)   by omitting from subsection (2) “or any
                        other”;

                  (c)   by inserting in subsection (4) “a copy of”
                        after “register”;


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      Powers of Attorney Amendment Act 2008
                    Act No. of
                                                                 s. 6


            (d)   by inserting the following subsection
                  after subsection (4):

                   (5)   For the purposes of this section, a
                         copy of a power of attorney,
                         instrument varying or revoking a
                         power of attorney or any other
                         instrument relating to powers of
                         attorney is to be made by a
                         process    approved      by     the
                         Recorder.


6. Sections 9 and 10 substituted
           Sections 9 and 10 of the Principal Act are
           repealed and the following sections are
           substituted:

      9.    Formal requirements
            (1)   A power of attorney made or created
                  under section 18 or 30 must –

                   (a)   not have more than one donor;
                         and

                   (b)   be signed by the donor with that
                         signature attested by the signature
                         of –

                           (i)   in the case   of an enduring
                                 power of      attorney, two
                                 witnesses       neither    of
                                 whom is a     party to it and
                                 each of         whom has
                                 witnessed      it in the
                                                                        5
       Powers of Attorney Amendment Act 2008
                     Act No. of
s. 6


                                 presence of the donor and
                                 each other; or

                          (ii)   in the case of any other
                                 power of attorney, a
                                 witness who is not a party
                                 to it and who witnesses it
                                 in the presence of the
                                 donor; and

                  (c)   comply with this Act; and

                  (d)   be legible; and

                  (e)   be capable of producing a legible
                        copy by a process approved by
                        the Recorder; and

                  (f)   contain any matter that is
                        intended to be in addition to, or to
                        be inserted in and form part of, a
                        power of attorney in a page of
                        that power of attorney or in the
                        form of an annexure; and

                  (g)   be on A4-size paper; and

                  (h)   if it consists of more than one
                        page,     have     each     page
                        consecutively numbered and be
                        stapled or pinned in the top left
                        hand corner; and

                  (i)   be accompanied by a registration
                        application; and



6
Powers of Attorney Amendment Act 2008
              Act No. of
                                                           s. 6


             (j)   include or be accompanied by
                   any information or document
                   required by the Recorder.

     (2)   An annexure to a power of attorney
           must –

             (a)   be in the same size and form as
                   the power of attorney; and

             (b)   be referred to in the power of
                   attorney; and

             (c)   contain identification that it is the
                   annexure to the power of
                   attorney; and

             (d)   subject to subsection (3), be
                   signed by the parties to the power
                   of attorney or, where the party is
                   a body corporate, by the persons
                   who have attested the affixing of
                   the seal of that body corporate to
                   the power of attorney; and

             (e)   comply with this Act.

     (3)   If one of the parties to a power of
           attorney is a body corporate that is not
           required by law to affix its seal to the
           power of attorney, an annexure to the
           power of attorney is to be signed by any
           person who is authorised by law to
           execute the power of attorney.

     (4)   An alteration to a power of attorney or
           annexure –
                                                                  7
       Powers of Attorney Amendment Act 2008
                     Act No. of
s. 6


                   (a)   is to be made by striking through
                         the word or words intended to be
                         altered so as not to render
                         illegible the original word or
                         words; and

                   (b)   is to be initialled by the donor
                         and the attorney.

           (5)   The initialling by the donor of an
                 alteration to a power of attorney or
                 annexure is to be witnessed –

                   (a)   in the case of an enduring power
                         of attorney or annexure to such a
                         power of attorney, by two
                         witnesses neither of whom is a
                         party to it and each of whom has
                         witnessed it in the presence of the
                         donor and each other; or

                   (b)   in the case of any other power of
                         attorney or annexure to such a
                         power of attorney, by a witness
                         who is not a party to it and who
                         witnesses it in the presence of the
                         donor.

           (6)   A witness to the initialling of an
                 alteration to a power of attorney or
                 annexure may be the same person as, or a
                 different person to, the person who
                 witnessed the power of attorney or
                 annexure.



8
Powers of Attorney Amendment Act 2008
              Act No. of
                                                             s. 6


10.   Requirements for other instruments

      (1)   Subject to this section, section 9 applies
            as far as relevant –

              (a)   to an instrument that refers to a
                    power of attorney, other than an
                    instrument    referred   to    in
                    section 32A; and

              (b)   to an annexure to such an
                    instrument.

      (2)   An instrument that refers to a power of
            attorney, including an instrument referred
            to in section 32A, must clearly identify
            the power of attorney by reference to –

              (a)   the name of the donor; and

              (b)   the name of the attorney; and

              (c)   the date on        which     it   was
                    executed; and

              (d)   the distinctive number or other
                    means of identification given
                    under section 12(2).

      (3)   Where an instrument that refers to a
            power of attorney is required to be signed
            by the donor, it is sufficient if it is signed
            by the donor’s personal representative
            with a statement as to how and in what
            capacity he or she has been appointed to
            act.


                                                                    9
             Powers of Attorney Amendment Act 2008
                           Act No. of
s. 7


       7. Section 11 amended (Powers of attorney not to be
          registered except in accordance with this Act)
                Section 11 of the Principal Act is amended as
                follows:

                  (a)   by omitting subsection (1) and
                        substituting the following subsection:

                         (1)   The Recorder must not register
                               any power of attorney or other
                               instrument under this Act unless
                               it –

                                 (a)   complies with this Act;
                                       and

                                 (b)   is accompanied by a
                                       registration application.

                 (b)    by omitting subsections (3) and (4) and
                        substituting the following subsections:

                         (3)   If a power of attorney or other
                               instrument is lodged with the
                               Recorder under this Act for
                               registration and does not comply
                               with this Act, the Recorder
                               must –

                                 (a)   refuse to register the
                                       power of attorney or other
                                       instrument and return it to
                                       the person who lodged it;
                                       or



10
Powers of Attorney Amendment Act 2008
              Act No. of
                                                       s. 7


                   (b)   return the power of
                         attorney      or     other
                         instrument to the person
                         who lodged it with a
                         notice notifying him or
                         her that the Recorder will
                         refuse to register the
                         power of attorney or other
                         instrument unless the
                         specified corrections are
                         made.

           (4)   Where corrections are to be made
                 as mentioned in subsection (3) –

                   (a)   the Recorder may refuse
                         registration    of    the
                         corrected    power     of
                         attorney     or     other
                         instrument      if    the
                         corrections are not made
                         within 60 days after
                         notice under subsection
                         (3)(b) was given, or
                         within such further time
                         as the Recorder may
                         allow; and

                   (b)   the corrections are to be
                         initialled by the donor and
                         attorney.

          (4A)   The initialling of corrections to a
                 power of attorney or other
                 instrument by the donor under

                                                         11
       Powers of Attorney Amendment Act 2008
                     Act No. of
s. 7


                        subsection (4)(b)    is   to    be
                        witnessed –

                          (a)   in the case of an enduring
                                power of attorney, by two
                                witnesses     neither   of
                                whom is a party to it and
                                each of whom has
                                witnessed it in the
                                presence of the donor and
                                each other; or

                          (b)   in the case of any other
                                power of attorney, a
                                witness who is not a party
                                to it and who witnesses it
                                in the presence of the
                                donor.

                 (4B)   A witness to the initialling of
                        corrections to a power of attorney
                        or other instrument may be the
                        same person as, or a different
                        person to, the person who
                        witnessed the power of attorney
                        or other instrument.

           (c)   by omitting from subsection (5) “on” and
                 substituting “in relation to”;

           (d)   by inserting the following subsection
                 after subsection (5):

                 (5A)   Despite any provision of this Act
                        to the contrary, the Recorder may
                        accept for registration a power of
                        attorney, annexure or alteration to
12
     Powers of Attorney Amendment Act 2008
                   Act No. of
                                                             s. 8


                       a power of attorney that does not
                       comply with this Act if the
                       Recorder considers it appropriate
                       to do so in the particular
                       circumstances.


8. Section 12 amended (Lodgment of powers of
   attorney, &c.)
        Section 12 of the Principal Act is amended as
        follows:

          (a)   by omitting subsection (2) and
                substituting the following subsection:

                 (2)   On lodgment of a power of
                       attorney or other instrument, the
                       Recorder must –

                         (a)   identify the power of
                               attorney       or     other
                               instrument by endorsing
                               on it a distinctive number,
                               a distinctive letter and
                               number or any other
                               identifying procedure; and

                         (b)   take a copy of the
                               endorsed     power    of
                               attorney      or   other
                               instrument; and

                         (c)   return the endorsed power
                               of attorney or other


                                                               13
              Powers of Attorney Amendment Act 2008
                            Act No. of
s. 9


                                        instrument to the person
                                        who lodged it.

                   (b)   by inserting in subsection (3)(a) “copy of
                         the” after “on the”.


        9. Section 18 amended (Form of power of attorney)
                 Section 18(1) of the Principal Act is amended by
                 omitting “attorney” first occurring and
                 substituting “attorney, other than an enduring
                 power of attorney,”.


       10. Section 26 amended (Appointment of attorney by
           class)
                 Section 26 of the Principal Act is amended by
                 omitting subsection (2) and substituting the
                 following subsections:

                   (2)   If a person does any act, or executes or
                         signs a document, and purports to do so
                         as a member of a class of persons
                         appointed as attorneys under a power of
                         attorney –

                           (a)   any other person dealing with the
                                 purported attorney may assume
                                 the purported attorney has
                                 sufficient authority to do the act,
                                 or sign or execute the document,
                                 as such an attorney; and


14
      Powers of Attorney Amendment Act 2008
                    Act No. of
                                                               s. 11


                   (b)   the doing of the act, or the
                         signature on or execution of the
                         document, is taken to be evidence
                         that the purported attorney has
                         sufficient authority to do the act,
                         or sign or execute the document,
                         as such an attorney.

           (3)   This section does not apply to an
                 enduring power of attorney.


11. Section 30 amended (Creation and effect of
    enduring powers of attorney)
         Section 30 of the Principal Act is amended as
         follows:

           (a)   by omitting       paragraph    (b)    from
                 subsection (2);

           (b)   by inserting the following subsection
                 after subsection (4):

                   (5)   If before the commencement of
                         this subsection an attesting
                         witness was not present, as
                         required by Form 3 or Form 4 as
                         in      force      before     that
                         commencement,         when      an
                         attorney signed the form of
                         acceptance on or relating to an
                         enduring power of attorney
                         (whether or not the witness
                         attested that he or she witnessed
                         the attorney’s signature) –
                                                                  15
               Powers of Attorney Amendment Act 2008
                             Act No. of
s. 12


                                      (a)   the enduring power of
                                            attorney is not and has
                                            never been, by that reason
                                            only, invalid; and

                                      (b)   any act done, or document
                                            signed or executed, by the
                                            attorney is not and has
                                            never been, by that reason
                                            only, invalid.


        12. Section 32 amended (Duties of attorney under
            enduring power of attorney)
                    Section 32 of the Principal Act is amended as
                    follows:

                      (a)   by omitting from subsection (2) “Subject
                            to subsection (3), an” and substituting
                            “An”;

                     (b)    by omitting subsection (3).


        13. Section 32A inserted
                    After section 32 of the Principal Act, the
                    following section is inserted in Part 4:

             32A.    Substitution of The Public Trustee as
                     attorney
                     (1)    If –

                              (a)   a power of attorney appoints only
                                    one attorney, that attorney may
16
       Powers of Attorney Amendment Act 2008
                     Act No. of
                                                                s. 14


                          appoint The Public Trustee to act
                          as attorney in his or her place; or

                    (b)   a power of attorney appoints
                          more than one attorney, those
                          attorneys jointly may appoint The
                          Public Trustee to act as sole
                          attorney in their places.

            (2)   An appointment under subsection (1) is
                  to be –

                    (a)   in accordance with form 6; and

                    (b)   signed by the attorney or all
                          attorneys; and

                    (c)   accepted by The Public Trustee in
                          accordance with that form.

            (3)   An appointment is of no effect until
                  registered by the Recorder.

            (4)   If The Public Trustee is appointed to act
                  as attorney under this section, a reference
                  in this Act to an attorney is taken to be a
                  reference to The Public Trustee.


14. Section 33 amended (Power of Board to make
    orders in respect of enduring power of attorney)
          Section 33 of the Principal Act is amended by
          inserting after subsection (6) the following
          subsections:


                                                                   17
               Powers of Attorney Amendment Act 2008
                             Act No. of
s. 15


                    (6A)    If the Board adjourns a hearing held
                            under this section, the Board may make
                            any interim order or give any directions it
                            considers appropriate, including making
                            an order appointing The Public Trustee
                            as administrator of the estate of the
                            donor.

                    (6B)    Subsection (6A) does not authorise the
                            Board to suspend the operation of an
                            enduring power of attorney, or extend
                            such a suspension, which may only be
                            done by the Board under subsection (4)
                            or (6).

                    (6C)    An interim order has effect for the period
                            of the adjournment and any subsequent
                            adjournment or as specified in the
                            interim order.

                    (6D)    The Board may vary or revoke an interim
                            order or make a further or subsequent
                            interim order.


        15. Section 55A substituted
                    Section 55A of the Principal Act is repealed and
                    the following section is substituted:

             55A.    Prescribed fees
                      (1)   The fees prescribed in Schedule 2 are
                            payable under this Act for the matters to
                            which they respectively relate.

                      (2)   A prescribed fee –
18
       Powers of Attorney Amendment Act 2008
                     Act No. of
                                                                s. 16


                    (a)   is to be paid to the Recorder or an
                          agent appointed by the Recorder
                          under section 169E of the Land
                          Titles Act 1980; and

                    (b)   may be paid in any manner
                          approved by the Recorder.

            (3)   A person, if so authorised by the
                  Recorder or an agent appointed by the
                  Recorder under section 169E of the Land
                  Titles Act 1980, may pay a prescribed fee
                  after the transaction to which it relates.


16. Schedule 1 substituted
          Schedule 1 to the Principal Act is repealed and
          the following Schedule is substituted:




                                                                   19
        Powers of Attorney Amendment Act 2008
                      Act No. of
s. 16


              SCHEDULE 1 – FORMS
                                            Section 3(2)
                       FORM 1
                                        Section 18(1)(b)




20
Powers of Attorney Amendment Act 2008
              Act No. of
                                        s. 16




                                           21
        Powers of Attorney Amendment Act 2008
                      Act No. of
s. 16


                       FORM 2
                                        Section 18(1)(c)




22
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              Act No. of
                                        s. 16




                                           23
        Powers of Attorney Amendment Act 2008
                      Act No. of
s. 16


                       FORM 3
                                Section 30(1)(b) and (2)(c)




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              Act No. of
                                        s. 16




                                           25
        Powers of Attorney Amendment Act 2008
                      Act No. of
s. 16




26
Powers of Attorney Amendment Act 2008
              Act No. of
                                                       s. 16


                FORM 4
                         Section 30(1)(c) and (2)(c)




                                                          27
        Powers of Attorney Amendment Act 2008
                      Act No. of
s. 16




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              Act No. of
                                        s. 16




                                           29
        Powers of Attorney Amendment Act 2008
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s. 16


                       FORM 5
                                           Section 3(1)




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              Act No. of
                                                  s. 16


                FORM 6
                                    Section 32A




                                                     31
        Powers of Attorney Amendment Act 2008
                      Act No. of
s. 16




32            Government Printer, Tasmania

				
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